Allgemeine Geschäftsbedingungen

TERMS OF USETHE ORCHARD WEBSITE AND MOBILE APPLICATION TERMS OF USE

LAST UPDATED: January 2, 2019

SECTION 1 ACCEPTANCE OF TERMS OF USE

1.1 These terms of use (“Terms”) govern your access to and use of The Orchard’s websites, mobile applications, services, and applications (“Site”). By accessing or using the Site, you are agreeing to these Terms and entering into a legally binding contract with The Orchard Media, Inc. and its subsidiaries (“The Orchard”). Any references to “you” and “your” refer to you, as a user of the Site. References to “we”, “us” and “our” refer to The Orchard.

1.2 Please read these Terms carefully before you start to use the Site. By using the Site, or by clicking “Accept,” “Join Now,” “Sign Up,” or any other similar button or link, you accept and agree to be bound and abide by these Terms. If you do not agree to these Terms, do not access or use the Site.

1.3 The Site is offered and available only to users who are at least thirteen (13) years old or, if applicable law requires that you must be older, then the minimum age under applicable law. The Site is not for use by anyone (i) who is under the age of thirteen (13), (ii) whose account has been terminated by us, or (iii) who has otherwise been restricted by us from using the Site. The Site is not designed nor intended for use by children or anyone else under the minimum age requirement. By using the Site, you represent and warrant that you are of legal age to form a binding contract with The Orchard and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, do not access or use the Site.

1.4 The Site is operated in the United States. If you are located in the European Union, Canada, or elsewhere outside of the United States, please be aware that information we collect will be transferred to and processed in the United States. By using the Site, or providing us with any information, you fully understand and unambiguously consent to this transfer, processing, and storage of your information in the United States, a jurisdiction in which the privacy laws may not be as comprehensive as those in the country where you reside and/or are a citizen.

SECTION 2 CHANGES TO TERMS OF USE

We may modify these Terms from time to time. When changes are made, we will post the revised version on this webpage, and will indicate at the top of this page the date that revisions were last made. You should revisit these Terms on a regular basis, as revised versions will be binding on you. Any such modification will be effective immediately upon our posting of new Terms; however, any changes to the dispute resolution provisions set forth in Section 18 (Choice of Law and Venue) will not apply to any disputes for which the parties have actual notice prior to the effective date of such change. You understand and agree that your continued access to or use of the Site after any posted modification to these Terms indicates your acceptance of the modification.

SECTION 3 USING THE SITE

3.1 We grant you permission to use the Site subject to the restrictions in these Terms. We may change, restrict, or terminate your permission to use the Site for any conduct that we consider to be inappropriate, or for your breach of these Terms, including the restrictions listed in Section 6 (Restrictions). Your use of the Site is at your own risk, including the risk that you might be exposed to content, information, data, items, materials, software, text, displays, images, video, and audio (“Content”) that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate.

3.2 The Site may be modified, updated, interrupted, suspended or discontinued at any time, for any or no reason, without notice or liability to The Orchard.

3.3 If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur under your password or account. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Site or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information, and ensure that you exit from your account at the end of each session. We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason.

SECTION 4 CONTENT

4.1 Users may not submit or upload Content and The Orchard will not accept Content submitted by a user unless the Content that is submitted by a user (“User Contribution”) is submitted pursuant to the terms and conditions of a Global Distribution Agreement or another written agreement entered into between The Orchard and the user (“Separate Agreement”). In the event that there is any conflict or any inconsistency between these Terms and the terms and conditions of the Separate Agreement, the terms and conditions of the Separate Agreement shall prevail.

4.2 You acknowledge and agree that all Content on the Site, including, but not limited to, text, data, graphics, logos, button icons, images, audio clips, video clips, links, digital downloads, data compilations, and software is owned, controlled by, or licensed to The Orchard and is protected by United States and international intellectual property or proprietary rights laws. Content on the Site, other than Content made available in connection with a Separate Agreement, is made available solely for your personal, non-commercial use and may not be copied, reproduced, republished, modified, uploaded, posted, transmitted, or distributed in any way, including by e-mail or other electronic means, without the express prior written consent of The Orchard in each instance. Other than Content made available in connection with a Separate Agreement, you may download material intentionally made available for downloading from the Site only for your personal, non-commercial use only, provided that you keep intact any and all copyright and other intellectual property rights notices that may appear on such materials. Except for Content made available in connection with a Separate Agreement used in accordance with the terms and conditions of such Separate Agreement, you may not:

(a) copy, reproduce, edit, modify, create derivative works of, distribute, make available, display, sell, publish, broadcast, circulate, use, store, or transfer, in any form or medium, any portion of the Site or any Content (or any part thereof) provided in connection with the Site, nor permit any third party to do the same, except as expressly authorized by us;(b) reproduce, distribute, or use any Content or any derived Content in any commercial news or information service, nor permit any third party to do the same;(c) delete or alter any copyright, trademark, or other intellectual property or proprietary rights notices from any Content provided in connection with the Site;(d) reverse engineer, decompile, disassemble, or otherwise attempt to derive any source code for any portion of the Site; or(e) download more Content than reasonably necessary for the purposes described herein.

4.3 No right, title, or interest in or to the Site or any Content provided in connection with the Site is transferred or otherwise granted to you under these Terms. Between you and The Orchard or its licensors, all right, title, or interest in or to the Site and the Content provided in connection with the Site are reserved by The Orchard or its licensors. Any use of the Site or any Content not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, or other laws.

4.4 The Orchard name, THE ORCHARD, , and all related names, logos, product and service names, designs, and slogans are trademarks of The Orchard or its affiliates or licensors. You may not use any of the foregoing without the prior written permission of The Orchard. All other names, logos, product and service names, designs, and slogans on the Site are the trademarks of their respective owners.

SECTION 5 MONITORING AND ENFORCEMENT

5.1 We have the right to:

(a) disclose your identity or other information if we believe disclosure is necessary or appropriate to protect the rights, property, or safety of The Orchard, our customers, or others;(b) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site; or(c) limit, terminate, or suspend your account or access to all or part of the Site for any or no reason, including without limitation, if we believe you are in violation of any law or regulation or rights of others, or in breach of these Terms, or have misused the Site.

SECTION 6 RESTRICTIONS

You may use the Site only for lawful purposes and in accordance with these Terms. You must comply with all applicable laws and regulations related to your access to or use of the Site.

6.1 You agree not to, and will not assist, encourage, or enable others to use the Site to:

(a) promote any material that is knowingly false or defamatory, inaccurate, abusive, vulgar, obscene, profane, hateful, harassing, sexually oriented, threatening, or invasive of anyone’s privacy;(b) violate any applicable federal, state, provincial, local or international law or regulation;(c) violate a third-party’s copyright or other intellectual property rights;(d) introduce any information or software that contains a virus, worm, defect, Trojan horse, or another item of a harmful, disruptive, or deleterious nature;(e) engage in commercial activity (including, but not limited to, sales, contests, or sweepstakes) without The Orchard’s prior written consent;(f) solicit, request, or collect personal information for commercial or unlawful purposes;(g) exploit or harm minors in any way by exposing them to inappropriate Content, asking for personally identifiable information, or otherwise;(h) send bulk emails, surveys, or other mass messaging whether commercial in nature or not;(i) engage in keyword spamming, or otherwise attempt to manipulate the Site’s search results; or(j) impersonate or attempt to impersonate The Orchard or any other individual or entity.

6.2 You also agree not to, and will not assist, encourage, or enable others to:

(a) restrict or inhibit any other user from using and enjoying the Site (for example, by means of hacking or defacement);(b) utilize any robot, spider, site search/retrieval application, or other automated device, process, or means to access, retrieve, scrape, or index any portion of the Site;(c) remove or modify any copyright, trademark, or other intellectual property rights notice that appears on any portion of the Site or on any materials printed or copied from the Site;(d) record, process, or mine information about other users;(e) reformat or frame any portion of the Site;(f) take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on The Orchard’s technology infrastructure or otherwise make excessive traffic demands of the Site;(g) attempt to gain unauthorized access to the Site, user accounts, computer systems or networks connected to the Site through hacking, password mining, or any other means;(h) use any device, software, or routine that interferes with the proper working of the Site, or otherwise attempt to interfere with the proper working of the Site;(i) use the Site to violate the security of any computer network, crack passwords or security encryption codes; (j) disrupt or interfere with the security of, or otherwise cause harm to, the Site; or(k) remove, circumvent, disable, damage, or otherwise interfere with any security-related features of the Site, features that prevent or restrict the use or copying of Site Content, or features that enforce limitations on the use of the Site.

SECTION 7 UNSOLICITED SUBMISSIONS

The Orchard and its employees do not accept or consider unsolicited creative materials, demos, ideas, suggestions, concepts, methods, systems, designs, plans, techniques, sound recordings, musical compositions, or other materials (collectively, the “Submission”). If, despite our policy, you still submit unsolicited material to us, then The Orchard will not be obligated to treat your Submission as confidential or proprietary and, by making such a Submission, you will be deemed to have acknowledged that (i) The Orchard has no obligation and shall not be liable to you or to any person claiming through you based on such Submission, (ii) you relinquish any claim whatsoever based upon your Submission, and (iii) you hereby grant The Orchard a royalty-free, perpetual, non-exclusive, unrestricted, fully transferable, worldwide license to (a) use, copy, sublicense, adapt, transmit, publicly perform, or display the Submission and (b) sublicense to third parties the unrestricted right to exercise any of the foregoing rights granted with respect to the Submission. The foregoing rights shall include the right to exploit any intellectual property rights in the Submission, including but not limited to rights under copyright, trademark, service mark, or patent laws under any relevant jurisdiction. We may disclose any Submission to another party in connection with a merger, divestiture, restructuring, reorganization, dissolution, change of control, or other sale or transfer of some or all of The Orchard’s assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding.

SECTION 8 PRIVACY POLICY

Use of the Site is also governed by our Privacy Policy, which is incorporated into these Terms by reference. By using the Site, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

SECTION 9 LINKS FROM THE SITE

The Site may include links to other websites or applications (each, a “Third-Party Site”). Unless otherwise noted, The Orchard does not operate, control, or endorse any information, products, or services on any Third-Party Site. If the Site contains links to Third-Party Sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. You agree that we are not responsible for the availability or contents of any Third-Party Sites, that your use of any Third-Party Sites is at your own risk and subject to the terms and conditions of use for such Third-Party Sites, and that we accept no responsibility for them or for any loss or damage that may arise from your use of them.

SECTION 10 INDEMNIFICATION

You agree to indemnify, defend, and hold harmless The Orchard, or any person or entity associated with The Orchard, including its affiliates, licensors, licensees, and services providers, and their respective officers, directors, employees, and agents (“Indemnified Parties”) from and against all claims, liabilities, losses, judgements, awards, damages, expenses, and costs, including but not limited to reasonable attorneys’ fees, arising out of or resulting from (i) your access to or use of the Site, (ii) your violation of these Terms, (iii) your use of any products or services purchased or obtained by you in connection with the Site, or (iv) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. The Orchard reserves the right, at your expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

SECTION 11 WARRANTY DISCLAIMER

11.1 You understand that we cannot and do not guarantee or warrant that the Site or any Content provided in connection with the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE, ACCESS, OR DOWNLOADING ANY CONTENT, OR ON ANY WEBSITE LINKED TO IT.

11.2 THE SITE IS MADE AVAILABLE TO YOU ON AN “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE” BASIS. THE ORCHARD EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOUR USE OF THE SITE IS AT YOUR OWN DISCRETION AND RISK. THE INDEMNIFIED PARTIES EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, QUALITY, ACCURACY, OR RELIABILITY OF THE SITE, ITS SAFETY OR SECURITY, OR THE SITE CONTENT.

11.3 THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

SECTION 12 LIMITATION OF LIABILITY

12.1 IN NO EVENT WILL THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE THE SITE, ANY WEBSITES LINKED TO THE SITE, OR ANY CONTENT PROVIDED IN CONNECTION WITH THE SITE OR SUCH OTHER WEBSITES, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SITE, RELATED SERVICES OR ANY THIRD PARTY SITE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF, THE SITE.

12.2 TO THE EXTENT THE FOREGOING IS UNENFORCEABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, COSTS, LOSSES, AND CAUSES OF ACTION IN THE AGGREGATE (WHETHER IN CONTRACT, TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY) AND WHETHER OR NOT WE WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE ARISING FROM THESE TERMS OR USE OF ANY SERVICE EXCEED, IN THE AGGREGATE, $100.00.

12.3 THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

12.4 THE ORCHARD MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING HOW OFTEN THE MATERIALS OR INFORMATION POSTED ON THE SITE WILL BE UPDATED (IF AT ALL) OR THE NUMBER OR IDENTIFICATION OF THE RECORDING ARTISTS OR OTHER INDIVIDUALS (IF ANY) THAT WILL BE FEATURED ON THE SITE.

SECTION 13 VOID WHERE PROHIBITEDAlthough the Site is accessible worldwide, not all products or services discussed or referenced on the Site are available to all persons or in all geographic locations. The Orchard reserves the right to limit, in its sole discretion, the provision and quantity of any product or service to any person or geographic area it so desires. Any offer for any product or service made on the Site is void where prohibited.

SECTION 14 MAKING PURCHASES

If you wish to purchase products or services described on the Site, you may be asked to supply certain information including credit card or other payment information. By initiating a transaction, you warrant and represent that, you (i) are eighteen (18) years old or older and (ii) have the legal right to use the payment means you select. You agree that all information that you provide will be accurate, complete, and current. You agree to pay all charges, including shipping and handling charges, incurred by users of your credit card or other payment mechanism at the prices in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases. The Orchard will be entitled to change the pricing and availability of any particular product(s) or service(s) without prior notice at any time. The Orchard does not offer refunds in the event of temporary or permanent price drops following the purchase at higher prices. All sales of digital content are final.

SECTION 15 LINKING TO THE SITE AND SOCIAL MEDIA FEATURES

15.1 You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.

15.2 The Site from which you are linking, or on which you make certain Content accessible, must comply in all respects with these Terms. You must also comply with such website’s terms and conditions of use and content standards.

15.3 You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.

15.4 You must not:

(a) cause the Site or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking, or in-line linking, on any other site; or(b) otherwise take any action with respect to the Content provided in connection with these Terms that is inconsistent with any other provision of these Terms.

15.5 The Site may provide certain social media features that enable you to:

(a) link from your own or certain third-party websites to certain Content on the Site;(b) send e-mails or other communications with certain Content, or links to certain Content, on the Site; or(c) cause limited portions of Content on the Site to be displayed or appear to be displayed on your own or certain third-party websites.

You may use social media features solely as they are provided by us and solely with respect to the Content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such features. We may disable all or any social media features and any links at any time without notice in our sole discretion.

SECTION 16 RULES FOR PROMOTIONS

Any contests, sweepstakes, surveys, games, or similar promotions (collectively “Promotions”) made available through the Site may be governed by specific rules that are separate from these Terms. By participating in any such Promotions, you will become subject to those rules, which may vary from the Terms set forth herein. The Orchard advises you to review carefully any specific rules applicable to a particular Promotion and to review our Privacy Policy, which, in addition to these Terms, governs any information you submit in connection with such activities. To the extent that the rules for a Promotion conflict with these Terms, the Promotion rules shall control.

SECTION 17 CHOICE OF LAW AND VENUE

17.1 These Terms shall be governed by, and construed in accordance with, the laws of the State of New York, exclusive of its choice of law rules. Each party submits to the exclusive jurisdiction of the state and federal courts sitting in the Borough of Manhattan in the City of New York in the State of New York, and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Each party further agrees as follows: (i) any claim brought to enforce these Terms must be commenced within two (2) years of the cause of action accruing; (ii) no recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys’ fees; and (iii) any claim must be brought individually and not consolidated as part of a group or class action complaint.

17.2 Any legal suit, action or proceeding arising out of, or related to, these Terms shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

SECTION 18 GENERAL TERMS

18.1 In the event that any of the provisions of these Terms are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect.

18.2 Additional terms and conditions may also apply to specific portions, services, transactions, or features of the Site. All such additional terms and conditions are hereby incorporated into these Terms by reference.

18.3 Any failure by The Orchard to exercise or enforce any right or provision of these Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

18.4 These Terms are not assignable, transferable, or sublicensable by you except with The Orchard’s prior written consent, but may be assigned or transferred by us without restriction. Any assignment attempted to be made in violation of these Terms shall be void.

18.5 The section titles in these Terms are for convenience only and have no legal or contractual effect.

18.6 A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.